Faulty bullet-test cases finding way to court

Martin Mcclain, a defense lawyer in Florida, says his client is on death row in large part due to unreliable science.

Derrick Smith was found guilty of a 1983 homicide in a trial involving "bullet lead analysis," a method the FBI acknowledged in 2005 is invalid. Florida v. Smith, No. 83-02653-CFANO-I (Pinellas Co., Fla., Cir. Ct.).

His case is a prime example of the kind that a new task force wants reviewed in hopes of reversing any wrongdoing that may have resulted from the faulty test. [NLJ, 4-4-05.]

"We're passing that [case] to the FBI and asking them to look at it immediately," said Barry Scheck, one of the two coordinators of the Joint Comparative Bullet Lead Analysis Task Force, which was formed last November by the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Network, a group of organizations providing services to those seeking to prove their innocence.

It looks like Smith will have plenty of company. Several years after the FBI admitted the bullet analysis test was invalid, cases in which the evidence played a central part are making their way through the courts. Also, FBI officials confirmed that they have identified cases involving the faulty testing from as far back as the 1970s.

Pro bono commitments

The task force is lining up pro bono commitments from several law firms to handle the cases. Those firms include New York's Fried, Frank, Harris, Shriver & Jacobson; Chicago's Winston & Strawn; and New York's Skadden, Arps, Slate, Meagher & Flom.

"Once these cases are identified, we're going to be working with law firms who will be providing pro bono services to review these cases," said Norman L. Reimer, NACDL's executive director.

David Koropp, a partner in the Chicago office of Winston & Strawn, said his firm is willing to offer as much of a pro bono commitment as necessary.

"It was something we thought we could bring the strength of a large law firm to," he said. "You're going to need a lot of people to review a lot of material."

Scheck expressed concern about identifying cases that date back as far as Smith's because they may lack documentation.

But special agent Ann Todd, a spokeswoman for the FBI laboratory, said the agency has already identified a few cases from the mid-1970s.

"FBI is in the process of identifying lab reports for all bullet lead examinations that resulted in matches and were used in successful prosecutions," she said, adding the agency will not have more detailed information until several months from now.

Last year, the FBI said it conducted bullet lead examinations in about 2,500 cases, but that results were introduced as trial evidence in less than 20% of them.

Compositional analysis of bullet lead or CABL — which is also called comparative bullet lead analysis or CBLA — tests the structure of a bullet used in a crime and matches it with others manufactured at the same time. The test raised major concerns in 2004, when the influential National Academy of Sciences cast doubt on it in a report. After its own review, the FBI announced in 2005 it would discontinue using such tests.

A 1990 shooting

McClain of Wilton Manors, Fla.'s McClain & McDermott, said he recently filed a motion in Smith's case for a rehearing and is awaiting a decision. Smith was convicted of murdering a Florida cab driver in 1990. In November, the court denied Smith's motion to vacate his conviction, but McClain is now arguing that Smith's conviction is constitutionally unreliable because of invalid evidence.

Glenn Martin, one of the prosecutors in the case, did not return calls seeking comment.

Some criminal defense lawyers said it is too early to say how cases involving bullet lead analysis will be handled.

"The problem is ultimately what the courts are going to do about it and if they favor finality over reliability, than ultimately it will do the defendants no good," said Suzanne Drouet, assistant public defender for the Maryland Innocence Project, a division of the state's Office of the Public Defender.

Drouet is representing James Kulbicki, a former police sergeant who was convicted of first-degree murder in 1995. Drouet said bullet lead analysis was used to connect Kulbicki's off-duty firearm to the murder weapon. Kulbicki v. Maryland, No. 93-CR-0530 (Baltimore Co., Md., Cir. Ct.). S. Ann Brobst, assistant state's attorney in Baltimore, did not return calls for comment.

An important case on the issue has already emerged in her state. In 2006, Maryland's high court, the Court of Appeals, reversed the murder conviction of Gemar Clemons and ordered a new trial as a result of invalid bullet lead analysis evidence. Clemons v. Maryland, No. 70, September term 2005 (Md.).

Paul Casteleiro of The Law Office of Paul Casteleiro in Hoboken, N.J., who is appealing another case involving bullet lead analysis, said that, while the tests have proven invalid, courts will likely tackle the issue on a case-by-case basis.

He is representing Michael S. Behn, who was convicted of a 1995 murder based in part on expert testimony on bullet lead analysis. State v. Behn, 375 N.J. Super. 409 (N.J. App. Div.).